Skilled or unskilled nursing: Feds ramp up investigations, prosecutions
“The lack of supervision and monitoring of the residents is a serious safety concern.”
“Due to the facility’s inadequate documentation, the team could not determine if the resident was receiving the appropriate nursing care to meet her healthcare needs.”
“Areas of concern included decomposing walls at the floor level, uneven floor surfaces, peeling paint throughout the facility, non-functioning water fountains and heavily soiled floors, baseboards and doors.”
“In summary, systemic problems with the provision of medical care and services, with extreme polypharmacy and the unwarranted prescription of psychoactive agents without adequate indications or consent, create a risk of possible substantial harm to every resident of the facility.”
The above comments are from a series of memoranda prepared by the Operation Guardians inspection team, an investigative arm of the Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse, after conducting recent random inspections of SNFs in California. The inspections are part of an increased focus by the Attorney General’s office on the conditions in SNFs throughout the state of California and mirror the trend of enforcement and prosecution against those in the healthcare industry across the country.
The descriptions are chilling and convey a growing concern among law enforcement agencies throughout the country—that those facilities and the owners, operators and administrators responsible for providing care to our elderly and infirm residents are failing to meet a basic standard of care. The result of this failure can have severe civil and criminal consequences.
The Centers for Medicare & Medicaid Services (CMS) in the past few years has published a list of underperforming nursing homes throughout the nation. These facilities are subjected to increased visits from CMS survey teams under the Special Focus Facility (SFF). The teams conduct thorough inspections of nursing homes and monitor their compliance progress. Those facilities found to be non-compliant with CMS’ federal standards are listed on CMS’ website.
Almost every state has a similar program to that of the CMS survey teams and an example of this nationwide increased level of inspection and enforcement is readily apparent in California. The Operation Guardians (OG) is a multi-agency task force established in 2000 to conduct unannounced, on-site inspections of California’s SNFs. The task force comprises state regulatory and law enforcement officials such as district attorneys, city attorneys and geriatric care specialists, including physicians.
The scope of the random investigations includes a review of resident medical files, a physical examination of a select number of the residents and an inventory and auditing of the facility’s equipment and files. Additionally, the Operation Guardians inspect the building’s facilities, focusing on maintenance issues that can impact a resident’s safety, and they also observe the staff’s interaction with residents. Exit interviews are conducted with the staff and any non-compliance issues are referred to local regulatory or law enforcement agencies.
The detailed inspection reports were recently disclosed pursuant to a Public Records at Request made by California Advocates for Nursing Home Reform (CANHR), a nursing home advocacy organization. According to the CANHR, the most common problems discovered during the inspections included under-reported injuries; overmedication with psychotropic drugs; poor hygienic conditions; elementary medication mistakes; and falsified medical records and fraudulent billed services.
While CANHR’s characterization of the findings is disputed by many of the management at the SNFs, the underlying reports clearly provide evidence for most of the problems described by CANHR. Of the 14 facilities inspected during the most recent time period (January 2010 – March 2012), all of the facilities were found to be providing substandard services in many different areas and were deemed non-compliant with the Bureau of Medi-Cal Fraud and Elder Abuse guidelines. Since the public disclosure, local newspapers and online reporting forums have highlighted the conditions at nursing homes and this increased press has impacted the skilled nursing community in a negative manner .
ATTORNEY GENERAL PROSECUTIONS
In addition to the unannounced inspections, the Attorney General’s office has made it clear that prosecuting SNFs is one of the department’s top priorities. The Federal Elder Justice Act (EJA) of 2009 requires all reports of suspected crimes committed against a resident of the facility to be submitted to at least one local law enforcement agency or jurisdiction and the Department of Public Health Licensing and Certification Program. This change in the law will increase the number of direct referrals by SNFs to local law enforcement agencies.
An outcome of this renewed focus on mandatory reporting of alleged abuse at SNFs is that criminal prosecutions are being brought not only based on the physical abuse of elders or dependent adults, (which is much easier to prove), but also on the failure to supervise or act of neglect by those in positions of authority or supervision. Such cases are difficult to prove given the intent requirement in both state and federal elder abuse statutes. However, that has not deterred prosecutors from bringing these prosecutions. For example, in California a hospital administrator was held criminally liable for failing to adequately supervise the director of nursing who was found to have administered psychotropic medications to elderly residents so that they could be restrained for staff convenience. The administrator was convicted in June 2012 of a single felony count of conspiracy to commit an act injuries to the public health, a violation of California Penal Code Section 182(a)(5).
The outcome of the recent press associated with the national inspections and prosecutions of healthcare administrators is that there will be a continued and renewed focus by the federal and state investigating agencies that regulate the skilled nursing and healthcare industries. Additionally, one of the key provisions of the Patient Protection and Affordable Care Act of 2010 health reform law (ACA) is increased funding and compliance requirements. The ACA calls for the dedication of $350 million over the next 10 years to combat fraud and abuse, including the hiring of additional federal investigators and agents, and the adoption of compliance programs as a condition of participation in Medicare and Medicaid.
Nursing home advocacy groups have recommend that these state-wide random inspections be increased and that follow-up inspections be conducted on facilities that have significant problems occur on a regular basis. Such recommendations are sure to be implemented, as there is clear evidence that the Attorney General’s offices throughout the nation have targeted skilled nursing and long-term residential care facilities as an area of concern and possible prosecution. As stated by Attorney General Harris in recent press releases concerning both the Verdugo Valley Kern Valley Healthcare prosecutions, “Skilled nursing facilities and other healthcare institutions should honor the trust that is placed in them or they will face consequences. [We have] strong laws to prevent elder abuse and we will enforce them so we can protect the most vulnerable among us.”
The importance of compliance cannot be overstated as the consequences of a criminal conviction against a facility are significant. A prosecution against a facility that results in a felony conviction will result in the forfeiture of the facility’s license and federal funding. Further, the costs involved in litigating such allegations can be daunting and the negative press associated with criminal investigations has obvious economic and professional consequences.
As a result of the increased inspections and focus by the country’s leading prosecutors on these facilities, SNFs must take a close look at all aspects of their programs, paying special attention to the areas that have been the subject of recent investigations and prosecutions. At a minimum, nursing facility administrators should conduct a review and upgrade of any deteriorating facility conditions. Care should also be taken to ensure that appropriate staffing levels are being followed and that the administration of medication, particularly psychotropic medication, is done in a careful and documented manner. Staff training should occur on a regular basis and it is also recommended that LTC providers engage professionals who have a thorough understanding of the complex and highly regulated healthcare industry in order to become familiar with the enforcement and investigatory actions taken by law enforcement agencies. Any apparent deficiencies in these compliance areas should be immediately addressed.
Disclaimer: This article is not legal advice. Consultation with licensed and experienced legal counsel is advised.
 Memoranda of Operation Guardians Inspections, Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse, April 6, 9, and May 21, 2012.
 Please see Representative Recent Prosecutions of Nursing Homes and the Individuals that Own and Operate Them, https://rytescompany.com/268/, July 16, 2012, for an excellent summary of recent prosecutions of long term healthcare providers throughout the United States.
 The fourteen facilities that were inspected were: Bakersfield Healthcare Center; Brasell’s Hamptom Manor; Desert Knolls Convalescent Hospital; Evergreen Healthcare Centers of Vallejo – Springs Road; Florin Health Care Center; Golden Cross Health Care; Motion Picture and Television Fund Skilled Nursing Units; Plott Nursing Home; Roseville Point Health & Wellness Center; Sunrise Convalescent Hospital; Tarzana Health and Rehabilitation Center; Windsor Redding Care Center; Winsor House Care Center; Yuba Skilled Nursing Center.
 Pamela A. MacLean, Criminalizing Chemical Restraints, California Lawyer, September 2012, at 6-8; Ashley Gebb, Yuba City care home blasts Operation Guardians report, appealdemocrat.com; July 21, 2012. Rebecaa Whitnall, Operation Guardians Reports Show “Rampant Abuse and Neglect” at Local Nursing Home, Encino-Tarzana Patch, July 18, 2012.
 Eight felony counts of elder abuse were dismissed in the interests of justice and the sentence included only fines and community service imposed, which has resulted in some criticism by advocates for the protection of elders and dependent adults.
Thomas S. Brown is a member of the Government Enforcement, Compliance & White Collar Defense Practice Group at the San Francisco office of Foley & Lardner LLP. He currently counsels and defends clients facing potentially damaging penalties in such areas as international business, securities, antitrust and healthcare. He may be contacted at (415) 984-9830 or firstname.lastname@example.org
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